My complaint with the lawyers has to do with things like companies announcing liability lawsuits against corporations involved in accidents before the investigations have even STARTED (or only a day into the investigation). A prime example of this was the AutoTrain crash in Florida. A lawfirm announced the lawsuit, claiming that Amtrak hadn’t properly maintained its rails. Amtrak doesn’t own the rails, and wasn’t responsible for their upkeep. CSX, the company that does own the rails wasn’t mentioned in the suit. I would expect an HONEST lawyer to bother to do the research on a basic point like this.
A question for the lawyers - in a class action lawsuit - who makes more, on a per person basis - the thousands of people who are bringing the lawsuit, or the lawyer who argues the case?
Your question is a non sequitur. The very point of a class action, lawoot, is that it enables people to bring lawsuits for legitimate grievances where the “per person” damages are small, but the aggregate harm to the class is large. If I rip you off to the tune of $5, I’m essentially immune from anything you can do to redress that injury, since it would cost you far more in time and money to recover that loss from me. But if I rip off a million people for $5 each, I’m gonna get nailed–and rightly so–by a class action seeking $5 million in compensatory damages. That is why we have class actions.
So your “per person basis” question makes not one whit of sense.
Most states do have a Statute of Repose for product liability matters. In Illinois, that time period is 10 years. If the product is more than 10 years old, and it breaks, injuring you, you can’t sue under products liability (where the manufacturer is liable simply for putting an unsafe product on the market). You can still sue under a negligence theory (where the manufacturer is not liable unless it was negligent in allowing an unsafe product to go on the market).
The statute of limitations is the maximum amount of time between when you are injured and when you must bring suit. eg. If you are injured by a defective product, you have two years from the time of the injury within which to file the lawsuit.
On preview, I agree with lawoot on the class action issue. While many of the problems with the American legal system could be solved or minimized with some tinkering, the way lawyers are compensated in class action suits does need some major overhaul. I, unfortunately, don’t really have any ideas as to how to do it.
Now that is a relevant question. Answer? I dunno. Some, I’m sure. For the record, I am strongly opposed to some of the more “creative” class action settlements, such as the too-common practice of giving class members coupons good for reduced prices in future purchases from the defendants while the lawyers take home cash.
Then why a 'class action’against Amtrak for ONE accident? Are you saying that injuries from a rail accident are small-ticket items?
We’re talking 19 hours, 42 minutes after the accident the press report on the lawsuit was filed. So when was the suit ITSELF filed? Did the law firm take anytime looking into whether the case was valid? Do any research over who was the correct company/individuals to sue? Nope. Just [reading between the lines]We’re going to sue Amtrak. Come join us and get RICH!!![/reading between the lines]
Sod off, lawoot. You don’t know a goddamned thing about what that firm knew or didn’t know about Amtrak’s safety practices. Maybe the firm deals with railroad litigation all the time. Maybe Amtrak trains really do[ fall off the rails all the damn time because the company doesn’t do enough maintenance. Or maybe you’re right that the lawyers are full of shit and jsut looking to extort money from anybody they can get their greedy hands on. But the fact is, you don’t know a goddamned thing about the nature of their case or their reputation, and you just presume that they’re unethical shysters because that’s one explanation for the suit.
You, sir, are a knee-jerk moron. Come back and rant when you’ve got more than bullshit innuendo to stand on.
For what it’s worth, my understanding is that, in the past, many securities class action law firms would file suit within hours of any significant price-drop in a stock.
The idea is that the first firm to file would have a better shot at being appointed “lead counsel.” I’m not sure if the recent securities litigation reform act changed that practice.
In any event, I agree that the practice of filing first, asking questions later is troubling. In fact, IIRC, the federal rules require attorneys to make a reasonable inquiry before filing suit. These quick-filers would seem to be risking running afoul of such rules (if they file in federal court).
But I do know that the company, “is a national law firm that concentrates its practice in the representation of investors and consumers in class action litigation.” (Quote from the link above) Which, if I’m not mistaken, does not make them a firm that “deals with railroad litigation all the time”. Dealing with bad service issues, sure. But major accidents? In less than twenty-four hours? In my opinion, they’ve just become ambulance chasers.
Why? I like lucwarm’s explanation:
Lead counsel=more money
And I know enough about railroads to know that Amtrak has NOTHING to do about the condition of the rails that the train was riding on. And I know that if “the firm deals with railroad litigation all the time”, they SHOULD know that too.
So what I see, in my “knee jerk reaction” to this case, is a company that is sue-happy; nay, whose entire reason for BEING is being sue-happy; jumping into an area in which it (apparently) has little to no expertise.
So maybe Amtrak SHOULD have something to do with the condition of the tracks, eh? It is not a defense to one’s own negligence that you thought somebody else was going to take care of it for you.
And how the fuck do you discern that this firm incapable of adequately representing those people–who, after all, had their lives seriously fucked up by somebody who screwed up big time. As for your bullshit “sue-happy” epithet, get fucking used to it. That’s like bitching at accountants for being “audit-happy” or waitresses for being “tip-happy.”
Finally, your “ambulance chasers” accusation is ignorant in at least one crucial respect: nobody gets to file a lawsuit without having a client hire them first. So somebody who got hurt by that train derailment asked these guys to take their case–which, for all you know, is the most meritorious class action lawsuit in the history of the entire world.
I told you to come back when you had something more to stand on than bullshit innuendo. Obviously, you don’t listen very well.
Amending pleadings to drop parties is no big deal, particularly when weighed against the advantages an early entry offers concerning gathering evidence. It is vital to control the case, rather than be swept up in it.
How would waiting a week hamper the ability to gather evidence? Certainly lawyers are free to interview witnesses and investigate in other ways before a lawsuit is filed. Once a lawsuit is filed, the plaintiff’s attorney gains access to more powerful discovery devices. But those devices are not particularly fast anyway.
If there really is a danger that key evidence will be spoiled, I imagine that one could charge into court seeking a Temporary Restraining Order. Just filing a complaint wouldn’t have much effect.
In most situations, I think it would be adequate to send the potential defendant a letter indicating that you may be suing them and admonishing them to preserve all relevant evidence.
Like I said before, it is troubling to me that a law firm would file suit so quickly. We don’t know what the plaintiffs or their counsel know, but it makes me wonder if they have any good-faith basis (yet) to sue Amtrak.
You’re right that it’s easy enough to amend pleadings and drop a party. But you’re subjecting each defendant to the trouble and expense of hiring counsel, notifying their insurance carrier, etc. Besides, it’s just uncool to allege something in a complaint without SOME good-faith basis to do so. (IMHO)
By the way, I think that this sort of behaviour is proper if the statute of limitations is about to run.
Sending letters admonishing the defendant to preserve evidence is nice but has no power behind it, whereas getting out and taking affidavits helps trump later conflicting evidence by the defence, and helps pre-empt pressure on witnesses to clam up or shred. You would be amazed at how important timing can be in securing evidence. Whether this should be done prior to filing is a judgment call, depending on what you expect the potential defendant to do.
If, in a hypothetical example of an uninvolved party being named rather than an involved party, then I expect that the problem would lie with a lawyer being sloppy, rather than with early filing per se. For example, if the lawyer wanted to get the show on the road but was not certain of all the parties, then a filing including John Doe would be appropriate.
As far as subjecting the defendant to trouble and expense, that’s where the costs system in some nations (including mine), makes a lot of sense. I don’t think that a plaintiff’s counsel should hold back out of concern for the defendant - - it is best if such protection of the opposition be left to the system, leaving both parties free to come on hard without having to pull punches provided they act within le regle de jou.
Well, in my jurisdiction it has a lot of power. A party who destroys evidence relevant to pending or threatened litigation is guilty of “spoliation.” Plaintiffs are entitled to an inference that spoliated evidence is adverse to the defendant. Of course, the defendant might destroy evidence anyway - but he or she could do this just as easily after having been served with a complaint.
Are you sure that your jurisdiction does not have similar rules?
**
I’m not sure what you mean by “taking affidavits,” but presumably it is a procedure in your jurisdiction whereby questions are propounded to a party in oral or written form, and that party must respond under oath.
Based on my knowledge of litigation and human nature, I’m guessing that a defendant in your jurisdiction can put off having to answer such questions for a while. Certainly to a point in time a couple months after the original complaint is filed, a point where a few days, or even a week or two, won’t make much of a difference.
**
Agree, but you haven’t convinced me that filing a complaint a week early will make that much of a difference.
**
A “John Doe” complaint is a different bird altogether, since it’s not actually served on the unknown defendant. We’re talking about naming actual defendants.
Well, the rules in my jurisdiction require lawyers to have a colorable, good-faith basis before alleging something in a pleading. Are you sure that your jurisdiction does not have a similar requirement?
In any event, you are basically proposing that we turn a penalty into a licensing fee. That’s fine for parking tickets, but IMHO, not ok for attorneys.
I’m up on my jurisdiction’s rules (I’m a litigator), and of course there are heaps and heaps of rules and penalties pertaining to production etc. My point is that none of these rules put you in the driver’s seat. Either you have the evidence or you do not, and if you do not, the faster you get at it, the sooner you will be putting the defence on the defence, rather be left pounding on the door while the defence secures its fortress.
**
An affidavit is a sworn statement. An examination is more what you have described. Up here it can take a while until exams are held because usually one prefers to have the documents produced before questionning a potential witness (e.g. cross-examination on an affidavit, or examination for discovery). My preference is usually to identify who the potential witnesses are as soon as possible, and then go out and get their sworn statements. That way if pressure is put on them later on, or for whatever reason they get the “I forget” bug, or if their memories actually change, I have the affidavit taken at or close to the time of the incident in my back pocket. It forces the defence to have to deal with my evidence (and to some degree my characterization of the facts), rather than me having to pry evidence out of the defence.
Does this require filing pleadings, or will a week or so make a difference? Depends entirely on the case. Just as there is a time when a case is ripe for settlement or trial, there is a time when a case is ripe for pleading. A lawyer who pleads too early is making a mistake, but so to is the lawyer who dawdles.
So as a litigator, you would know whether or not there is a rule in your jurisdiction regarding destruction of evidence relevant to pending or threatened litigation. Is there or isn’t there?
**
Yes, but exactly how does filing a complaint a week earlier help matters?
**
Does there have to be a suit pending for you to get these sworn statements?
there would have to be a suit pending in order for the lawyer to get compensation for the costs of taking statements, investigation etc, wouldn’t there?
In my jurisdiction there has to be a direct connection between the case that has been won and any work done on it, whether that work was done pre- or post filing.